The State Bar seeks public comment on a proposal regarding the inactive enrollment of an attorney sentenced for 90 days incarceration or more and adding an additional ground for a summary disbarment upon a conviction of a crime.

Deadline: January 3, 2019

Background

Effective January 1, 2019 Business and Professions Code § 6007 (c), is amended to add two new subsections. The language added two requirements. First that any attorney who is sentenced to incarceration for 90 days or more as the result of a criminal conviction, shall be placed on involuntary inactive enrollment for at least the period of time in which the attorney is incarcerated. The attorney make seek reinstatement after his incarceration, by showing the attorney is no longer a threat to the community. Second, it requires that any attorney who is placed on inactive enrollment under this subdivision, be required to comply with Rule 9.20 of the California Rules of Court, that is notify their clients and provide proof they have done so. Additionally, Business and Professions Code §6102(c) was amended to add as an additional ground for summary disbarment, that an attorney was convicted of a crime, the commission of which involved acts of moral turpitude.

Discussion

There is currently an existing procedure by which the Office of Chief Trial Counsel refers matters involving the criminal conviction of a California attorney, to the Review Department of the State Bar Court. The Review Department then determines whether the attorney should be placed on interim suspension awaiting finality of the conviction, or be summarily disbarred. The procedures are found in Rules of Procedure 5.340, 5.341, 5.342, 5.343, and 5.344. These rules are amended to include the referral of a conviction in which the attorney is sentenced to 90 days incarceration or more, and a conviction of crime which may not involve moral turpitude per se, but the facts surrounding the commission of the crime do indicate moral turpitude, the two new categories in which interim suspensions or summary disbarment can result. The existing rules regarding how an attorney seeks reinstatement after release from jail did not need amending to cover the changes to the Business and Professions Code.

Proposal

For both the Business and Profession Code section amendments to the conviction referral process, the procedure to handle the summary disbarment or involuntary inactive enrollment, already existed. However references to the new language needed to be inserted into the existing rules to provide guidance to the parties and to ensure due process and full transparency to the process.

Additionally, as summary disbarments are currently handled by the Review Department level, and the Review Department does not conduct evidentiary hearings, it was necessary to provide a method for the Review Department to refer the matter to the Hearing Department for the limited purpose of determining if the facts and circumstances of the conduct did involve moral turpitude, if the crime itself did not involve moral turpitude per se. It is anticipated that the specifics of that referral, including the timing and method of report back, will simply be handled in the referral order, therefore no additional rules were deemed necessary.